70 The Alabama Lawyer 115 (2009). The Role of Amicus Briefs.

• Author: BY ED R. HADEN and KELLY FITZGERALD PATE

The Alabama Lawyer

2009.

70 The Alabama Lawyer 115 (2009).

The Role of Amicus Briefs

The Role of Amicus BriefsBY ED R. HADEN and KELLY FITZGERALD PATEMost lawyers are familiar with the phrase "friend of the court" and its Latin version "amicus curiae." Traditionally, the term was used to describe an independent, neutral brief-writer(fn1) "who, for the benefit and assistance of the court, informs it on some matter of law with regard to which the court may be doubtful or mistaken."(fn2)

The role of the amicus, however, has changed. Today, amici are rarely wholly independent from or neutral to the litigation in which they seek to have a say. Indeed, an interest in the litigation is one of the key factors used to determine whether an amicus curiae brief will be allowed. This change in the status of amici has fostered divergent views on the need for an efficacy of this practice.

Posner-Alito Dispute

Judge Posner, the often-cited Seventh Circuit Court of Appeals judge, has strongly advocated for a restricted approach to allowing amicus curiae briefs. In Voices for Choices v. Illinois Bell Telephone Co., 339 F. 3d 542 (7th Cir. 2003), Judge Posner set out, as he had done before,(fn3) this restrictive approach. The decision to allow amicus curiae briefs is one left solely to the court's discretion.(fn4) Under this discretionary view, Judge Posner noted that the court will, accordingly, "not grant rote permission to file such a brief." This is particularly true when the briefs are duplicative of the parties' arguments. This policy was supported by the following reasons: [J]udges have heavy caseloads and therefore need to minimize extraneous reading; amicus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties' briefs; the time and other resources required for the preparation and study of, and response to, amicus briefs drive up the cost of litigation; and the filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process.

Based on these reasons, Judge Posner listed criteria on which the decision to allow the filing of amicus briefs should be based: "whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties' briefs." This...